The Decline of the Lawyer Politician

Yale Law School; Harvard Law School, Program on the Legal Profession; Center for Policy Research (India)

Date Written: November 1, 2015

Abstract

While the ubiquity of lawyers in U.S. politics has long been noted, there has been almost no study of how lawyers’ prevalence in politics has changed over time, why these changes might have occurred, or the consequences of any such shift. Using a unique data set that extends over two hundred years of the occupational background of members of the U.S. Congress, this article documents for the first time that the traditional dominance of lawyers in Congress is in slow, but steady, retreat. In the mid-19th century almost 80% of members were lawyers. By the 1960s, under 60% were, and by 2016 less than 40%. The article puts forward a set of reasons for why lawyers have traditionally had such success in U.S. electoral politics. It then argues lawyers’ electoral decline is largely the result of changes within the legal profession as well as new electoral competition, particularly from an emerging specialized political class.

This article focuses on the effect of this decline of lawyers in U.S. politics on the country’s legal system. While lawyer legislators generally have similar voting records as other members, evidence is presented here for the first time that members of the House of Representatives who are lawyers have been more likely to support the funding of civil legal aid and oppose tort reform. This difference in voting records is part of a larger set of behavioral differences between lawyer and non-lawyer legislators that have arguably helped fostered the centrality of lawyers and courts in U.S. policy. At the same time that there has been a drop of lawyer politicians in Congress, there has also been a decline of lawyer politicians in the courts–with fewer judges entering politics, as well as fewer former politicians becoming judges. This shift reduces the likelihood that a judge will have political ambitions that may influence their duties, but also means judges have less political experience to draw on when making decisions and, ironically, may reduce judicial independence. The article concludes by observing that the lawyer politician has played a prominent role in shaping the rule of law norms that has produced and sustained U.S. democracy. As such, their decline may create underappreciated vulnerabilities to liberal democratic values in the country that should be both recognized and addressed.